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PFEIFFER v. CIA

September 12, 1989

JACK B. PFEIFFER, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff Jack B. Pfeiffer, a former employee of the Central Intelligence Agency (CIA or agency), brings this action under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (1982) (FOIA), seeking the release from defendant CIA a document entitled "CIA's Internal Investigation of the Bay of Pigs Operation" (Internal Investigation Report), which he authored as an Agency employee. *fn1" Plaintiff also seeks disclosure of a small amount of information redacted from a second document, which he also authored, entitled "The Taylor Committee Investigation into the Bay of Pigs" (Taylor Report). *fn2" The government has withheld this material as exempt from disclosure under Exemptions 1, 3 and 5 of FOIA. 5 U.S.C. §§ 552(b)(1), (3) and (5). Presently before the Court are defendant's Motion for Summary Judgment and plaintiff's Cross-Motion for Partial Summary Judgment. For the reasons that follow, we grant defendant's motion for summary judgment.

 BACKGROUND

 Plaintiff Jack Pfeiffer is an historian, who worked for the Central Intelligence Agency (CIA or Agency) from 1955 until he retired in March of 1984. From 1974-1984, he served as a Staff Historian, except for the period from January 1980 through December 1980, when he worked in the CIA's Classification Review Division. While employed at the Agency, he was assigned to work on the official history of the Bay of Pigs Invasion. By 1979, Pfeiffer had completed three classified volumes of the multi-volume official history. *fn3" Pfeiffer then began work on a fourth volume, based on the Taylor Committee investigation and the CIA Inspector General's investigation of the Bay of Pigs Operation, which he hoped eventually would be suitable for declassification. In preparing the fourth volume of the series, plaintiff submitted the Internal Investigation Report draft to his superior, Chief Historian J. Kenneth McDonald, for editorial review in 1981. According to defendant, the draft was rejected as inadequate, and plaintiff was instructed to make substantial revisions to meet the requirements of the Agency; plaintiff was still in the process of making those revisions when he retired in 1984.

 Shortly before his retirement, plaintiff submitted a purportedly "unclassified" version of the Internal Investigation Report to the CIA's Publication Review Board (Board) for pre-publication review. According to defendant, however, plaintiff had no authority to declassify the document and it remains classified at the present time. In plaintiff's view, he personally had the authority to declassify material, and the Internal Investigation Report that he submitted to the Board was the final, official, unclassified history. In any event, the Board informed plaintiff that because the manuscript was a CIA document, not his personal property, his request for review was inappropriate. After several unsuccessful attempts to persuade the CIA to declassify the report through official channels, plaintiff sought to obtain it under FOIA.

 The Taylor Report was written and edited by plaintiff in an identical manner to the Internal Investigation Report. The Agency has released, with a small number of redactions, the Taylor Report. The Agency claims that the redacted portions of the Taylor Report were properly withheld under Exemptions 1 and 3 of FOIA. 5 U.S.C. §§ 552(b)(1) and (b)(3).

 DISCUSSION

 Defendant has moved for summary judgment, asserting that there are no genuine issues of material fact and that the court should award judgment as a matter of law. Fed. R. Civ. P. 56(b). Plaintiff opposes summary judgment and cross-moves for partial summary judgment with respect to the redactions to the Taylor Committee Report. In considering the exemptions claimed by defendant, we keep in mind both the disclosure purpose of FOIA and the defendant's burden of demonstrating entitlement to an exemption. 5 U.S.C. § 552(a)(4)(B).

 A. Internal Investigation Report

 Defendant argues that the Internal Investigation Report is protected in its entirety from disclosure by the "deliberative process" privilege of Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). It is defendant's position that the Internal Investigation Report was properly withheld because its release would reveal the deliberative process involved in the creation of the CIA's official history of the Bay of Pigs.

 Defendant puts forth two grounds as to why Exemption 5 applies to the Internal Investigation Report. First, defendant contends that the Internal Investigation Report is a preliminary draft of an unfinished official agency history, the release of which would damage the Agency's deliberative process by exposing editorial decisions to the chilling effect of public scrutiny. Second, defendant asserts that release of the report would be tantamount to release of a privileged CIA Inspector General's report and intra-Agency response thereto, upon which the Internal Investigation Report is based.

 There is no dispute between the parties that a preliminary draft of an unfinished agency history is protected from disclosure in its entirety under the deliberative process privilege of Exemption 5. Dudman Communications Corp. v. Department of the Air Force, 259 U.S. App. D.C. 364, 815 F.2d 1565 (D.C. Cir. 1987); Russell v. Department of the Air Force, 221 U.S. App. D.C. 96, 682 F.2d 1045 (D.C. Cir. 1982); Plaintiff's Opposition to Defendant's Motion for Summary Judgment (Plaintiff's Memo.) at 14. Plaintiff, however, asserts that a factual issue exists as to whether the Internal Investigation Report should be characterized as a pre-decisional manuscript that represents the personal opinions of its author or as a "final" agency history that represents the official position of the CIA. See Plaintiff's Memo. at 16-17.

 Summary judgment is appropriate where there are no "substantial and material" factual issues left to be resolved. McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1101 (D.C. Cir. 1983) (quoting Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979)). Plaintiff may not rest on bare allegations, but must come forward with specific facts of sufficiently probative value to allow a reasonable trier of fact to render a verdict in plaintiff's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(e). Where, as here, the evidence, taken as a whole, can reasonably lead to only one conclusion under the ...


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